Dr B R Ambedkar College Of Law vs M/S Karnataka State Law University on 8 January, 2013
“In a suit for specific performance on the other hand, he treated and was
required by the Court to treat the contract as still subsisting. He had in
that suit to allege, and if the fact was traversed, he was required to
prove a continuous readiness and willingness, from the date of the contract
to the time of the hearing, to perform the contract on his part. Failure to
make good that averment brought with it the inevitable dismissal of his
suit. Thus it was that the commencement of an action for damages being, on
the principle of such cases as Clough v. London and North Western Railway
Co. (1871) L.R. 7 Ex. 26 and Law v. Law (1905) 1 Ch. 140 a definite
election to treat the contract as at an end, no suit for specific,
performance, whatever happened to the action, could thereafter be
maintained by the aggrieved plaintiff. He had by his election precluded
himself even from making the averment just referred to proof of which was
essential to the success of his suit. The effect upon an action for damages
for breach of a previous suit for specific performance will be apparent
after the question of the competence of the Court itself to award damages
in such a suit has been touched upon.”